A New Era of Protection Against Disability Discrimination? The ADA Amendments Act of 2008 and “Regarded As” Disabled

Date01 December 2013
AuthorMark D. Bradbury,Willow S. Jacobson
DOI10.1177/0734371X12472683
Published date01 December 2013
Subject MatterArticles
Review of Public Personnel Administration
33(4) 320 –339
© 2013 SAGE Publications
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DOI: 10.1177/0734371X12472683
rop.sagepub.com
472683ROP33410.1177/0734371X12472683Revi
ew of Public Personnel AdministrationBradbury and Jacobson
1Department of Government and Justice Studies, Appalachian State University, Boone, NC , USA
2School of Government, University of North Carolina at Chapel Hill, Chapel Hill, NC, USA
Corresponding Author:
Mark D. Bradbur y, Department of Government and Justice Studies, Appalachian State University, PO Box
32107, Boone, NC 28608, USA.
Email: bradburymd@appstate.edu
A New Era of Protection
Against Disability
Discrimination? The
ADA Amendments Act of
2008 and “Regarded As”
Disabled
Mark D. Bradbury1 and Willow S. Jacobson2
Abstract
Several U.S. Supreme Court rulings have substantially narrowed the coverage of the
Americans with Disabilities Act (ADA) since its passage in 1990. Congress amended
the ADA in 2008 to restore the original congressional intent of providing broad
coverage for people with disabilities. This article seeks to determine whether the 2008
amendments are a mere technical adjustment of the ADA, or constitute significant
legislation in their own right. A review of existing law, resulting regulations, and federal
cases reveals that the amendments may promise much but deliver more of the same.
Nevertheless, employers are well-advised to renew their efforts to cooperate with
applicants and employees with disabilities, if for no other reason than to avoid a costly
lawsuit that employers are perhaps now more likely to lose.
Keywords
legal/constitutional issues, affirmative action and equal employment oppor tunity,
discrimination, diversity, health issues and personnel
Congress acknowledged that society’s accumulated myths and fears about dis-
ability and disease are as handicapping as are the physical limitations that flow
from actual impairment.
School Board of Nassau County v. Arline (1987, p. 284)
Article
Bradbury and Jacobson 321
In 2008, the Americans with Disabilities Act (ADA) was amended to reinstate “a
broad scope of protection” that, since its passage in 1990, had been narrowed
through a series of U.S. Supreme Court decisions (42 U.S.C. § 12101 [b] [1]).
While the reform was meant to loosen the definition of disability generally, the
2008 ADA Amendments Act (ADAAA) also specifically addresses the Court’s
interpretations of the third prong of the definition—the “regarded as” disabled
clause. This definition protects individuals who are subjected to discrimination
based on an employer’s perceptions and assumptions that they are limited by a
physical or mental impairment.
This article analyzes the potential impact on public human resource practices of
the ADAAA. In doing so, the article provides a needed focus on the “regarded as”
disabled prong of the ADA. The data for this article are Fourth Circuit federal court
cases decided before the passage of the ADAAA, the ADAAA itself, regulations
developed as a result of the ADAAA, and federal cases decided in the short time
since the passage of the 2008 amendments. The analysis concludes that the ADAAA
brought renewed attention to the workplace-related challenges faced by those with a
disability, enhanced legal protections, and may tilt the balance toward a more pro-
employee implementation of measures addressing disability discrimination. The
extent of this tilt, and its implications for human resource management practitioners,
is less clear.
This article first provides a brief overview of the Americans with Disabilities Act of
1990, including related scholarly work on this topic and an introduction to the
“regarded as” definition of disabled. Next is a review of how “regarded as” disabled
has been interpreted and impacted by key Supreme Court decisions. A discussion of
the ADAAA as a congressional response to the decisions of the Supreme Court fol-
lows. The article then explores how an analysis of pre-ADAAA cases can inform the
impact the 2008 amendments will have on employer practices. Specifically, the analy-
sis explores which cases would likely result in the same outcome pre and post-ADAAA
and which may have an alternate outcome. The article concludes by highlighting
implications of the ADAAA on practitioners.
The Americans with Disabilities Act of 1990
The 2008 amendments (ADAAA) were intended to reassert the original intent of the
ADA, not to significantly redefine or alter the fundamentals of the law. Thus, any
analysis of the ADAAA must begin with a discussion of the ADA itself.1
As it relates to employment, the ADA provides that:
no covered entity shall discriminate against a qualified individual with a dis-
ability because of the disability of such individual in regard to job application
procedures, the hiring, advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, and privileges of
employment. (42 U.S.C. § 12112[a])

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